"Law Lessongs" are Law lessons in song.  Students learn in varied and diverse ways. Music can be an effective tool in presenting a lesson or providing a durable memory mechanism (think of a pre-schooler learning the ABC's).  Please listen to the songs (click on the large highlighted title). Feel free to use them in class.  Also, please send me your comments and suggestions at the e-mail address below.  If nothing else, hopefully they make class more interesting.  Many of theses topics deal with Commercial law, since that was the class where I needed to generate some interest to combat bland content.

All songs: Lead vocals and Guitar: Mark DeAngelis; Background vocals: Brighid DeAngelis: Recorded at the University of Connecticut television studio - special thanks to Lisa Kempter

 It's Not Certain, It Depends 

This song helps bust the popular myth that law is predictable and certain. I use it along with the discussion of stare decisis in the Legal Environment course. 

The old story goes something like this:

The law professor addressed  the class of law school graduates - "Three years ago, if you were asked, 'What is the law?' on a particular subject, you could only answer, 'I don't know.' Now, after three years of legal education you can answer with great confidence, 'It depends!'"

It’s Not Certain, It Depends      
Lyrics by Mark DeAngelis
Tune: Blowin’ in the Wind

How many times must a man fall down,
Before he can sue another man?
Yes, ‘n’ when should he plead to a white collar charge,
Rather than take the witness stand?
Yes, ‘n’ how many times will a drug harm our young,
Before it is FDA banned?
   
The answer my friend
Is it’s not certain it depends,
The answer’s it’s not certain, it depends

How much abuse must a worker endure,
Before her bosses comply?
Yes ‘n’ how many years of inequity pass,
Before your claims for justice die?
Yes, ‘n’ when can a contract for purchase of land
Grant rights that a party may buy?

The answer my friend
Is it’s not certain it depends,
The answer’s it’s not certain, it depends

How many years can a mountain of claims
Be ignored by an insurance company?
Yes ‘n’ how many ways can some people persist
In filling our penitentiaries?
Yes ‘n’ what is a capital gain on a sale
And when is a transfer tax-free?
   
The answer my friend
Is it’s not certain it depends,
The answer’s it’s not certain, it depends
   
The answer my friend
If there’s an answer in the end
The answer’s it’s not certain, it depends.

 

 The Case For Eminent Domain (The Ballad of Susette Kelo)

In Kelo v. New London the Supreme Court clarified the definition of "public use," authorizing government to exercise its power to take private property (eminent domain). This song reminds students of the requirements for a proper exercise of the power while summarizing the Kelo case.

The Case For Eminent Domain (The Ballad of Susette Kelo)
Words by M. DeAngelis and C. DeAngelis
Tune: The Night They Drove Old Dixie Down

Well Susette Kelo’s her name and she lived by the river Thames,
‘Till New London Redevelopment came, wielding eminent domain.
Her case to the Supreme Court went, to determine, what “public use” meant.
When the decision from Justice Stevens came down, it was certain to make homeowners frown.

The case for eminent domain; The powers expanding!
The case for eminent domain; No house was left standing!
Was the - city’s economic plan, sufficient public use for the “taking” to stand?

Our constitution guarantees, no taking of private properties,
Except for use publicly, and after payment of just compensation fees.
Now Susette didn’t really want to move and it wasn’t an issue that the money’s no good.
Take what you need for the public interest, but don’t take it just to give it to someone else!

The case for eminent domain; The powers expanding!
The case for eminent domain; No house was left standing!
Is it - another proper public use or a vivid example of the power’s abuse?

When a depressed municipality, in search of economic vitality,
Chooses to take private property, the court will defer to this modality.
“Public use” traditionally meant, ownership by the government,
Or use by the public like an airport may be, or eradication of a condition, unhealthy.

The case for eminent domain; The powers expanding!
The case for eminent domain; No house was left standing!
Look for - legislative controls or to the ballot box to remake the goals!

The City’s taken Susette’s land; her house removed was rebuilt eslewhere and stands,
As a monument to plans so grand, they  hardly could include the common man.
The Redevelopment Agency’s gone, disbanded by a city government forlorn.
No money to the developer’s been lent and nothing’s been built but precedent.

The case for eminent domain; The powers expanding!
The case for eminent domain; No house was left standing!
The Court said, "Development’s a certain success", but all New London’s got is rubble and mess.

 Enumerated Powers

One of the challenges for the drafters of the Constitution was to create a central government with enough power to be effective yet not so powerful as to be oppressive.  One of the devices employed is the concept of "enumerated powers." With power residing in "the people," the National (Federal) Government was given only the powers specifically enumerated in the Constitution.  State Governments, those being made up of "the people," were endowed with an inherent police power - to regulate the health, safety, welfare and morals of its citizens. I use the Commerce Clause cases to illustrate enumerated powers and Gonzales v. Raich (medicinal marijuana) to examine the tensions  between Federal and State powers.

Enumerated Powers
Words by M. DeAngelis
Tune: Desperado

Enumerated powers, are those the people have granted
When the Founders supplanted, Confederation rules
A nation’l gov’nment, with powers impressive
Yet still not excessive, ‘cause they’re limited too.
    The powers are expressly listed,
    To deal with immigration
    Levy duties, make post offices, declare war

    Create courts where none existed
    Handle commerce among states and nations
    To tax, establish credit, raise military corps

Enumerated powers, offset by inherent state ability
To preserve the state’s tranquility, general police power rule
Public health and safety, good morals and gen’ral welfare
Are entrusted to the state’s care, governmental power is dual
    State and national operations
    May overlap or conflict
    When they do the Federal law’s supreme

    In their government relations,
    The Feds have got the states licked
    But only when acting within the constitutional scheme
         
Enumerated powers, limited yet expansive
Are often enhanced, by the elastic clause
And the money, the Feds on locals may shower
Enhances their power (the Feds enhance their power)
The feds are expanding their power, into local areas of law.

 Due Process

Here's a bit of fun with both Procedural and Substantive Due Process. Hopefully students will remember: notice and opportunity to be heard, fair warning and fundamental liberties.

Due Process
By: M. DeAngelis

Do – do do do do do – Due Process
Do – do do do do do – Due Process
Do – do do do do do – Due Process
Due Process clause

What kind of claims can you make? – Due Process
Life, liberty or property at stake – Due Process
State just won’t give a break - Due Process
“Concept of ordered liberty”

Well, first you must have “state action”
Government denial of
A Liberty interest, or life being distressed,
Or propriety of taking property

Doo– doo doo doo doo doo – Due Process
Doo – doo doo doo doo doo – Due Process
Doo – doo doo doo doo doo – Due Process
State Action

What procedure is used? -  Due Process
When someone is accused?  - Due Process
So fairness is not abused? Due Process
Notice and trial

At least, you must have notice,
And an opportunity to
Present evidence, build your defense,
An impartial hearing, accusers appearing

Doo – doo doo doo doo doo – Due Process
Doo – doo doo doo doo doo – Due Process
Doo – doo doo doo doo doo – Due Process
Procedural

What if procedure is fair – Due Process
But the law is unclear – Due Process
Of conduct the law will not bear – Due Process
Ambiguous

The law must give fair warning,
Of what conduct’s proscribed
We can’t have to guess, at risking arrest
Where is the fairness in criminal unawareness?

Doo – doo doo doo doo doo – Due Process
Doo – doo doo doo doo doo – Due Process
Doo – doo doo doo doo doo – Due Process
Substantive

Some liberties are so fine – Due Process
That government crosses the line – Due Process
When they deny yours and mine – Due Process
Strict Scrutiny

Liberty that’s fundamental
Protected must be
Though they may not cite, the bill of rights,
Tradition has power, Human dignity’s ours

Doo – doo doo doo doo doo – Due Process
Doo – doo doo doo doo doo – Due Process
Doo – doo doo doo doo doo – Due Process
Substantive

Procedure sometimes is the claim – Due Process
Or clarity in law is the aim – Due Process
Liberty fundamental proclaimed – Due Process
“Scheme of ordered liberty

 Burden of Proof

Students are certainly familiar with the phrase, "beyond a reasonable doubt," but may be unsure of its proper context.  Hopefully this song helps to properly locate the concept as well as introducing "fair preponderance of the evidence" and "clear and convincing evidence standards."

Burden of Proof
Words: M. DeAngelis
Tune: Up On The Roof

When you file suit, pursuing a claim
The law demands you prove a prima facie case.
Proving each and every part of the claim
The burden, by law, on the plaintiff is placed

Burden of proof in civil claims to heed
“Preponderance of the evidence” we need
And don’t forget

The different standard in a criminal case
Where the government is there to prosecute.
Innocence presumption demands that the law
Burden the state while the accused may remain mute

Burden of proof in criminality
Is “beyond a reasonable doubt” of the jury
At trial there must be proof

But when the defendant raises a defense
To shift the burden of proof makes perfect sense

And finally in special civil cases we have
The plaintiff held to a standard that’s foolproof
 “Clear and convincing evidence” she needs
Where the law requires this higher burden of proof

Burden of proof
Fair preponderance
Beyond reasonable doubt
Burden of proof

 The Court System Song

This song covers trial court and appellate court hierarchy and jurisdiction. 

Court System Song
By: M. DeAngelis

Start with a trial court
Of original general jurisdiction
It’s where you file tort
Or contract civil claims
    Criminal Prosecution
    Housing Sessions and small claims
    Sometimes family matters
    When jurisdiction is the same
But don’t forget the courts of limited jurisdiction
Where state law grants them power to proclaim
   
Refrain:
It’s a matter of jurisdiction, 
The power to speak the law,
It’s jurisdiction, that matters after all.

Back in the trial court
You have an opportunity to be heard
You’ll get worthwhile support
From your lawyer, if you’re wise
    Examining your witnesses
    Exposing opposing witness lies
    Placing documents in evidence
    Fending off the other side
It’s the adversarial system, on display and in the flesh
Hoping to a just result the court will rise
    Refrain

You’ve a right to appeal
The trial court result
If your attorney feels
There’ve been errors of the law
    With appellate jurisdiction
    The court will examine the claimed flaws
    But they won’t conduct a trial
    Just legal argument that’s all
And remand the case if needed, back for trial once more
If needed to reverse the errors of law.
    Refrain

What of the Supreme Court?
The highest court in the land
The court of last resort
In any state may bear a different name
    Settling the law
    Is usually the aim
    And in most cases
    The procedure is the same
You may petition, but the Court’s docket is its own
And they may not choose to hear your claim

Start with a trial court . . . 

 Take it Reasonably

Negligence Law in a musical nutshell is the goal of this song. That's a lot to try to fit into one song, but hopefully the basic elements and highlights are adequately covered. As with all the songs, some classroom clarification and explanation is suggested.

Take It Reasonably
Words by M. DeAngelis
Tune: Take It Easy

When you’re drivin’ down the road, don’t forget the duty owed
It’s the common law for you and me.
We all must be alarmed, for those forseeably harmed,
By our path of liability.

Take it reas’nably, drivin’ pru-dently,
Don’t let cell phones or distractions make you careless.
Act as carefully as you can, ‘cause a “reas’nably prudent man,”
Is the standard that the law demands
So take it reas’nably.

If you choose a per’lous path, you will earn the legal wrath
For disturbing the tranquility.
When the evidence is shown, it’s what you should have known,
That determines liability.

You’re not a baby, you should know safety.
You consider many risks, encountered daily.
You may lose and you may win, when you try to beat the odds again,
But it’s a jury’s final decision
So take it reas’nably

To determine “cause in fact:” if “but for” the careless act,
The injury would not have occurred.
But don’t forget the laws, need prox’mate cause
To guard against results absurd.

We need proximity, to the injury,
As determined by reasonable foreseeability.
Intervening forces can, make a breach in causation’s span,
And supercede unless they can
Have foreseeability.

Now if injury is claimed and proven by the named,
Plaintiff in a trial ‘fore the court
Economic loss, past and future treatment costs
And lost wages needed for support.

Permanent disfigurement, Loss of life’s enjoyment,
Pain and suffering and impairment of employment,
Compensation is the aim, all of these are valid claims,
Not punitive damages that blame
And not attorney’s fees

So take it reas’nably
You gotta take it reas’nably

 Public Figures Need Malice

Unlike the prior song that tries to cover all of negligence law, this one tackles only a single issue of defamation law - the element of proof of actual malice required of public figures making defamation claims.  The tune here is "First Cut is The Deepest." Students are likely to be familiar with the Sheryl Crow version.  However, this song tracks the original Cat Stevens version or the Linda Ronstadt version, which gave me a few more lines of text that I needed for explanation of the legal concept.

Public Figures Need “Malice”
Words by M. DeAngelis
Tune: First Cut is the Deepest

Defamation is claimed by the plain
And the most famous among us, the same
When a statement has sullied her name
She’ll try to clear her name, again
Well to clear her name again she must show. . .

Public figures need malice,
They need to show, Public figures need malice
When it comes to defamation they lose
Without proof that actual malice infused
The statements that where made in the news
Now you know . . .  ( repeat first 2 lines)

Publication of false facts are wrong
It’s tortious just to pass them along
So that the target no longer belongs
Or otherwise is ridiculed or condemned
Well to clear her name again she must show . . .

Refrain

Actual Malice is not of the heart
But in the acts from which false words impart
If from reasonable standards they depart
Or if theres lying once again
Oh to clear her name again, she must show . . .

Public figures need malice,
They need to show, Public figures need malice
Did the speaker know false words were used?
Was she reckless in which words to choose?
Showing disregard for falsehood or truth?
If so, then the . . . Public figure proves malice,
Judgment will follow, Public figure proves malice

Oh, and she clears her name, again.

 The Business Organization Song 

This song is a summary of 4 of the principal business organizations. I use it in connection with a group project where students, in groups of 3, must investigate how to create each of theses 4 business forms and then choose one to create in order to run a fast food restaurant. The song hopefully points them to the basic characteristics of each. 

Business Organizations Song 

Lyrics by M. DeAngelis
Tune: Galway City or Spanish Lady

Partnership is easily formed,
No paperwork or filing fee.
Owners sharing business profits,
A partnership will surely be.
Management is shared among them.
Partners taxed personally.
The biggest flaw in all this planning,
Is personal liability.

Partnership, Limited Partnership Corporation or LLC

Silent partners are the rage,
When capital is to be spent.
Limited Partners must behave,
And keep away from management.
Personal assets are protected,
If silence is indeed maintained.
Registration with the state,
Most certainly must be arranged.

Partnership, Limited Partnership Corporation or LLC

Corporations are the standard,
Though taxes are charged dually.
Shareholder assets are protected,
From business liability.
But owners cannot run the business,
Only vote directors in.
Respect the legal form distinctions,
Or lose the shield the law had giv’n.

Partnership, Limited Partnership Corporation or LLC

The newest business organization,
Is the Limited Liability Company.
Member owned and member managed,
Yet no personal liability.
Taxation, too, is advantageous,
Like a partnership if you choose.
If legal issues do arise,
There’s little precedent for courts to use.

Partnership, Limited Partnership Corporation or LLC

 The Offer's Real 

When does negotiation coalesce into an offer that may be accepted? This view looks to language, surrounding circumstances and certainty and definiteness as factors to consider in finding an outward manifestation of present intent to be bound to a contract. I hope that it is useful to you.

The Offer’s Real
Lyrics by Mark DeAngelis
Tune: based on St. Anne’s Reel

Paul went off to work today,
Unaware of what might come his way,
Through e-mails, calls and letters and texts,
He wondered if he’d make a deal.

Communication constantly;
Negotiation seeming endlessly,
How can he tell when the offer’s made
To step in and seal the deal?

    Manifestation of a present intent,
    To perform a contract in any event,
    Look at the language that was sent,
    To determine if an offer’s real.

    I offer, I promise, I covenant to
    Render contract performance direct to you
    This is the language that will do
    To determine that an offer’s real

A court of law with objective bent
Will not unearth subjective intent
Read the signs from what’s been shown
To determine if the offer’s real.

An advertisement it’s been said
Is often not an offer, but instead
An invitation to make offers to buy
If the seller wants to seal a deal

    Manifestation of a present intent,
    To perform a contract in any event,
    What circumstances are present
    To determine if an offer’s real.

    Language expression may hold the key,
    Along with what circumstances there may be,
    Definiteness and certainty
    Will determine if an offer’s real.

With our terms now there must be
Sufficient definiteness and certainty
On each and every of the law’s demands
For a contract to made for real.

Sufficiently certain, sufficiently clear
With evidence for the court to hear
To grant relief in the event of breach
Will determine if the offer’s real.

    Manifestation of a present intent,
    To perform a contract in any event,
    Sufficiently certain and definite
    To determine if an offer’s real.

    Language expression may hold the key,
    Along with what circumstances there may be,
    Definiteness and certainty
    Help determine if an offer’s real.

    I offer, I promise, I covenant to
    Render contract performance direct to you
    This is the language that will do
    To determine that an offer’s real

 Mirror Image Rule 

This song deals with the issues of acceptance of contract offers.  At Common Law, the Mirror Image Rule required that the acceptance language mirror that of the offer. Any different or additional  language may convert the attempted acceptance into a counteroffer - terminating the ability to accept the original offer.  The modern trend is for courts to soften the MIR by looking at the substance and meaning of additional language - finding counteroffers where the attempted acceptance manifests an intent to contract only under the new or different terms.

Mirror Image Rule   
Lyrics by M. DeAngelis
Tune: Secret Agent Man

There’s a rule of contract law that’s danger,
For businessfolks to whom contract law’s a stranger.
With each offer in the trade,
How is acceptance made?
You don’t want to risk a counteroffer!

Refrain:
    Mirror Image Rule, Mirror Image Rule,
    The language of acceptance and the offer must be the same.

Any different language could be trouble.
Add another term - you’ve got trouble doubled!
At Common Law it’s true,
With additional language you’re through.
No acceptance here, it’s counteroffer.

Refrain

A court today will want to take a “look-see,”
Perhaps the extra language is “mere inquiry.”
“Can you start the job today?”
“Can you finish by the 10th of May?”
“Is the price negotiable or a firm offer?”
    
Refrain

What interpretation should we give it,
When implicit terms are made explicit?
Perhaps there is no harm,
Look at substance over form,
But don’t forget the UCC is different.

Refrain

 Non-Competition Clause

Students seem to have some difficulty grasping the non-competition clause rules.  I often get the answer, "Well, she should be bound by it because she signed it and it's not illegal." But isn't that the question? When is a non-competition clause legal (not in conflict with public policy)? This is a different kind of illegality than students are accustomed to.  Hopefully this song reminds students of the balancing test that goes into consideration of enforcement.

Non-Competition Clause 

Words by: M. DeAngelis
Tune: Buffalo Gals

How about a non-competition clause,
    Non-competition clause,
    Non-competition clause,
What about a non-competition clause,
Is it enforceable under the law?

It’s a matter of public policy,
    For the employee,
    Keeping enterprise free
But in balancing public policy,
The employer’s rights can’t be ignored.

If the employer has legitimate business interests,
    Like customer lists,
    Or trade secrets,
If sale of goodwill or special training exists,
There’s a reason for enforcing the clause.

How about a non-competition clause,
    Non-competition clause,
    Non-competition clause,
What about a non-competition clause,
Is it enforceable under the law?

But only if there’s reasonability,
    In geography,
    Scope of activity,
Length of non-employability
Factor in enforcing the clause.

So, normally a covenant not to compete
    To avoid defeat
    Has a standard to meet.
The court has a balancing test to complete,
Of the policies surrounding the clause.

How about a non-competition clause,
    Non-competition clause,
    Non-competition clause,
What about a non-competition clause,
Is it enforceable under the law?

This song follows a hypothetical where a contractor builds a new dormitory at a college.  At some point, the job is "done."  But is a construction job ever really "done?"  There are always punch list items to be completed. The song and example hopefully allow you to explore what level of performance is acceptable and what constitutes a breach. (In the heating work, the breach is material; in the case of the malfunctioning locks, the breach may be minor depending on how many locks are involved.)  Also, there is the opportunity to distinguish between substantial performance under the contract and the performance of substantial work under the contract.

The Substantial Performance Song

words by Mark DeAngelis
Tune: Ship That Never Returned (Work, H.C.)

Refrain:
Did he substantially perform?
Can the college use the dorm,
To keep the students safe and warm?
Look at substance over form,
Minor or material harm?
To determine if he substantially performed.

A builder’s bid was won
A job was to be done
To build a brand new college dorm
Excavators dug the land
Subcontractors followed plans
And soon substantial work they all performed

“We’re done!” the builder said,
“Let’s put this job to bed”
And the college inspectors came to see.
Though the structure did impress,
There were problems to address,
Before the college paid the final fee.
    Refrain

The inspectors checked the halls,
The plumbing, lights and walls,
And mostly they were satisfied and glad.
But when they checked the rooms for heat,
The work and standards did not meet,
The heating and the boiler work were bad.

Besides the heating ills
Leaving students with the chills,
A problem with security was found.
The college was appalled
When the locks that were installed,
In the students’ rooms were junk and broken down.
    Refrain x2
 

 Statute of Frauds Song 

Six types of contracts that require a writing - set to a Caribbean classic.

Statute of Frauds
Words by M. DeAngelis
Tune: Jamaica Farewell

Oh, I’m glad to say, that any day,
An oral contract is still OK.
But it’s a fact, for 6 kinds of pacts,
The Statute of Frauds requires a written contract.

Please, oh please, won’t you marry me?
I will give you riches and jewels that shine.
I’ll say “I do” and marry you,
As soon as you sign on the dotted line!

Oh, I’m glad to say, that any day,
An oral contract is still OK.
But it’s a fact, for 6 kinds of pacts,
The Statute of Frauds requires a written contract.

If one day, a party say
The debt of another she guarantees.
If no writing, there’s no denying,
The contract lacks enforceability.

Ah, but don’t forget, you may enforce it yet
If leading object of the debt
Was to benefit the one who said it
Then an oral contract the law will permit.

When an estate debt cannot wait
The executor pledges payment pers’nally
That pledge is toast from coast to coast,
When the promise is made simply orally.

Oh, I’m glad to say, that any day,
An oral contract is still OK.
But it’s a fact, for 6 kinds of pacts,
The Statute of Frauds requires a written contract.

If it appears that within a year,
The contract performance cannot be done.
Do not frown, just write it down
And the parties’ intentions won’t be undone.

Ah, but don’t forget, you may enforce it yet
Even lifetime employment
Enforceability applies orally
Though long term sounding it appears to be.

If its land we understand
That’s the subject of an interest transferring
If money’s spent even just for rent
Of more than a year you need some scribbling.

Ah, but don’t forget, you may enforce it yet
If a Buyer’s made partial payment
And entered the land or built something grand
Or if promissory estoppel rules take command.

Finally, under the UCC,
A sale of goods worth 500 or more.
The UCC treats writings differently
And a full written contract may not be in store.

Oh, I’m glad to say, that any day,
An oral contract is still OK.
But it’s a fact, for 6 kinds of pacts,
The Statute of Frauds requires a written contract.

 Mixed Contract Song (UCC - Sales) 

The mixed contract or "hybrid contract" involving both services and the sale of goods can be problematic for students.  If the contract is predominantly one for the sale of goods, then the law of article 2 of the UCC applies. Often, this determination, that of which law applies, leads to an obvious resolution of the underlying legal issue.  This song does not so much present students with strategies to make this determination, but acts as a reminder to do the "predominant purpose" analysis in the first place.

 The Mixed Contract Song
By Mark DeAngelis

In a mixed contract, if issues arise,
In a mixed contract, what law applies?
With a mixed contract the UCC should,
If the predominant purpose is a sale of goods
 

Just last week I went to the store
I needed some carpet to cover my floor
The salesman said, “If you buy from me,
It’s a special deal – the installation is free.”
The workers came in, they put the rug down
 

A mixed contract, if issues arise,
A mixed contract, what law applies?
With a mixed contract use the UCC
If it’s a sale of goods, predominantly.

With a Mixed contract, – goods and services, too.
In a Mixed contract what law will do?
With a mixed contract under the UCC,
There’s perfect tender and warranty.

 

 This Form is Your Form  (Battle of the Forms Song) 

In my experience, the Battle of Forms issue under the UCC seems to give students dreadful problems. The rules under the UCC can be confusing because there is a general rule for non-merchants, a different rule for merchants and then exceptions to the rule.  So, you end up with "if this then that but if this then that but if this, this or this, then something else." I think that the song helps!

This Form is Your Form

Words by M. DeAngelis
Tune: This Land is Your Land

Refrain: This form is your form, that form is my form.
They show a contract for us to perform.
You sent and order, I sent an invoice.
What terms are binding on you and me?

I am a merchant. I am a seller.
You’re not a merchant, just a regular fella’.
And my invoice is an acceptance.
But additional terms aren’t binding on you and me.

If you’re a merchant, our forms do battle.
It isn’t merely, idle prattle.
We have a contract, and the invoice terms are added in,
Unless it’s an exception, and there are three.

This form is your form, that form is my form.
They show a contract for us to perform.
You sent and order, I sent an invoice.
What terms are binding on you and me?

Between merchants, new terms are binding,
Unless you find them, quite surprising.
If unexpected, then material alteration you’ll claim,
And the new terms will not bind you and me.

Perhaps your offer expressly stated,
Contract terms could not be annotated,
Or perhaps you previously objected to the invoice terms,
Or you raised your objection, timed reasonably.

This form is your form, that form is my form.
They show a contract for us to perform.
You sent and order, I sent an invoice.
What terms are binding on you and me?

 Negotiability 

Students are often intimidated by commercial paper law. However, the first issue is usually determining whether or not an instrument is negotiable. And this involves little more than remembering the 8 requirements and a few simple rules about when those requirements are met.  I think that this little country ditty takes a lot of the formality and mystery out of the process.

Negotiability

by Mark DeAngelis

Refrain:
The law of negotiable instruments
Is tricky, admittedly.
The system of sale and purchase,
Of financial liability.
But the place to start we’re certain,
Is where we all should be.
There’s 8 distinct requirements
To determine negotiability.

Is the instrument in writing,
With permanence and portability?
Is the writing signed by the maker,
Or the drawer as the case may be?
Does it contain a payment promise?
Is there an order to pay the payee?
These are the first three requirements
To determine negotiability.
 
Is the promise or order unconditional,
Or is there a contingency?
There can’t be another document
That determines liability.
Is it payable in money,
Not diamonds or antiquities?
For a fixed amount, it’s OK to count
Interest variability.

Refrain

Is there a definite time for payment,
Calculated to a certainty?
Or on demand, we understand,
Means payable immediately.
Payable to bearer,
Meets our needs sufficiently.
While payable “to the order of,”
Means the order of the payee.

There are 8 distinct requirements
To determine negotiability;
A writing, signed, with a promise or order,
payment unconditionally;
A fixed amount of money,
On demand or timed with certainty;
Pay to bearer or order, and it’s no harder
To determine negotiability 

Refrain

 The Holder in Due Course Blues 

This song explores some of the issues regarding qualifying for HDC status and why the status is important to determine. 

Holder in Due Course Blues 

By Mark DeAngelis

Way down on the Delta, where some shady deals are made,
Financial markets boomin’ with commercial paper trade.
A seller with no principles can take a fella’s dough,
By sellin’ his loan papers to a bank that doesn’t know.

I’ve got the Holder, the Holder in Due Course blues.
I got a feelin’, I’m feelin’ like I’m bound to lose.
‘Cause a Holder, a Holder in Due Course rules.

Well my shrimpin’ business floundered, ‘cause my boat it wouldn’t float,
So I had to buy another with a promissory note.
The boat I got was leaky and the engine wouldn’t run,
So I told that rotten seller that my deal with him was done.

But I got the Holder, the Holder in Due Course blues.
The water’s risin’, it’s risin’ up to fill up my shoes.
This sinkin’ feelin’ tells me a Holder in Due Course is bad news.

The Seller sold my note ‘cause he needed to get cash,
The bank that was the buyer didn’t know the boat was trash
The banker man said, “Son, I hope you’re hearin’ what I say,
Your boat’s not all that’s sinkin’ ‘cause your note is due today!”

“You’ve got the Holder, Holder in Due Course blues.
Your boat is leaky, well to us that is certainly news.
In good faith we paid the seller the note’s fair market value.”

My lawyer sued that seller for the boat he sold to me,
But he just grabbed another boat and split for Tahiti.
Now I am left here cryin’ and wonderin’ how I owe,
Payment to a bank that I don’t know in Ohio.

I got the Holder, the Holder in Due Course blues,
‘Of my defenses, the Holder hadn’t even a clue.
I’m a victim of the Holder, the Holder in Due Course rules.

So if your note, or draft or check, negotiated lands,
With a holder who paid value in good faith and with clean hands,
Without notice of defenses, or irregularity,
If you’ve no real defense you’ll be payin’ your cash money,

To the Holder, the Holder in Due Course Dude.
He gets your money; you keep a boat that you can’t use.
And that’s the way of payin’ your Holder in Due Course dues. 

 

Holder in Due Course Blues (Reprise)

And just as you are thinking that you might get off the hook
‘Cause the holder of the note did not give value to the crook.
You still may be in trouble with the new collection plan,
If the holder took the note from a Holder in Due Course man

I’ve got the Holder Through a Holder in Due Course blues.
In his own right, he’d have trouble collecting from you,
But now he stands in Holder, Holder in Due Course shoes.

That’s the Holder Through a Holder in Due Course Shelter Rule.